‘Lost bylaw’ paved way for Uxbridge asphalt plant

Tuesday

Jan 29, 2013 at 6:00 AM

It was probably an innocent mistake: A duly approved 1995 town meeting vote to amend the zoning bylaws was never added to the printed copy of bylaws. The amendment added bituminous asphalt mixing or manufacturing as a prohibited use in all zoning districts in town.

By Susan Spencer TELEGRAM & GAZETTE STAFF

It was probably an innocent mistake: A duly approved 1995 town meeting vote to amend the zoning bylaws was never added to the printed copy of bylaws.

The amendment added bituminous asphalt mixing or manufacturing as a prohibited use in all zoning districts in town.

When a committee was formed a decade later to update the 50-year-old bylaws’ numbering system, remove inconsistencies with state law and add a table of use regulations, the revised version, approved at town meeting in 2008, also left out the 1995 asphalt prohibition.

The omission continued in 2011 when town meeting voters approved the addition and definition of manufacturing as an allowable use by special permit in industrial zones. There was no prohibition of asphalt manufacturing.

Zoning bylaws might be the stuff most town meeting voters prefer to breeze over, relying instead on a summary in the warrant or a brief explanation by the proponents. But inattention to detail and a document management system with insufficient backup had serious ramifications for the town down the road.

On Wednesday, the Uxbridge Planning Board voted to approve, with conditions, a special permit for an asphalt manufacturing plant at 586 Quaker Highway.

Steven Bevilacqua, project owner for Evergreen Development of Medway, said he had examined Uxbridge’s zoning bylaws before selecting the site, near Route 146, for his asphalt proposal.

Now the town faces the prospect of the very thing voters in 1995 thought they had succeeded in keeping out of town.

Municipal officials are making sure they have systems in place to prevent such a situation from happening again.

Meanwhile, opponents of the Evergreen plant have said they will appeal the Planning Board’s ruling.

Besides running up the town’s legal expenses, the issue has once again divided the town as it did in 1995, when a vocal group of South Uxbridge residents led the charge against an asphalt facility proposed by Blackstone Co.

The 1995 prohibited-use amendment came too late to block the proposed Blackstone asphalt plant, but the Board of Selectmen ultimately denied the developer a building permit in 1996.

“You cannot fault the (recodification) committee for not including it (the asphalt prohibition) because it was not in front of them,” said Town Manager Sean Hendricks.

“No one made a mistake in 2008 or everyone did. No one caught it. And it didn’t catch their attention until four years later (when the Evergreen project was proposed).”

The 2008 zoning bylaw recodification is at the crux of the legal debate surrounding the Planning Board’s action.

According to a Jan. 8, 2013, letter to Mr. Hendricks from Town Counsel Patrick J. Costello, before the May 2008 town meeting, copies of the proposed Final Draft Zoning Bylaw Re-codification document were filed with the Board of Selectmen, the town clerk, the town manager and the Department of Planning and Economic Development and at the town library. The document did not include the asphalt prohibition.

The warrant article approved by town meeting voters included the language: “All zoning bylaws, as amended, heretofore in force and not included in this code, shall be repealed.”

Mr. Costello wrote that in his opinion, because of the clear and specific language in the 2008 warrant article approved by voters, the 1995 prohibited-use bylaw was repealed because it was not included in the 2008 zoning bylaw recodification.

Mr. Hendricks said, “The intention of the (2008) committee was to present to the voters: ‘These are the town bylaws. This is the whole ball of wax.’ ”

Mr. Lough wrote that the 2008 recodification did not repeal the 1995 amendment because the published notice in 2008 did not contain information that the inadvertently omitted 1995 prohibited-use bylaw would be repealed.

Town officials still are at a loss to explain why the 1995 amendment was never written in the books — and why no zoning bylaws prior to 2002 can even be found.

“If you call it a chain of custody issue, it never leaves the clerk’s office,” Mr. Hendricks said about the proper certification and recording of bylaws voted on at town meeting.

Doris A. Ostroskey, who was town clerk in 1995 when the bylaw amendment passed, died in 2008.

Uxbridge Town Clerk Kelly J. Dumas, who has been in office for three and a half years, said that after a town meeting vote on bylaws is approved, which requires a two-thirds majority, the clerk certifies the vote and then sends it to the state attorney general’s office for approval. The attorney general’s office has 90 days to review the bylaw or amendment.

Once it is approved and returned to the town, the clerk has a constable post the bylaw change at Town Hall, the three post offices and the Department of Public Works office.

The bylaw changes are then incorporated online and printed out in hard copies, which are kept at the clerk’s office and elsewhere in Town Hall.

“The difference between now and 1995 is obviously the media,” Ms. Dumas said. “You look back at some of the old documents and they were hand-typed.”

She added that many town documents had been stored in boxes in the basement of Town Hall and were destroyed in floods in 2005.

There’s no requirement that a town clerk, which is a state-mandated position, be certified.

But Ms. Dumas has completed the course work for certification by the New England Municipal Clerks Institute and Academy and is working toward completing her experience credits. The certification process includes attending conferences and workshops on just such topics as document management.

“It does vary on how they handle zoning bylaws,” Ms. Dumas said. “In some towns it’s handled by planning departments; some outsource it to update things; in others it’s all done by the clerk.”

No one the Telegram & Gazette spoke with in municipal government could think of another case in which bylaw changes were lost and — in critical situations — forgotten, however.

Susan Funaiole, town clerk in Townsend, said, “I can see where it can happen easily,” when she heard about the lost bylaws from the pre-computerized days.

Townsend emails its bylaw changes to a company that incorporates amendments and updates the town books.

“I make sure that everyone that uses the code book has it; that the director of the library has it; and the town administrator and lawyers,” she said.

“It’s much easier now that everything’s on computers.”

Millbury Town Clerk Jayne Davolio said: “We in-house implement our bylaw book. We take everything from our computer and put it in a book that anyone can buy. It’s online, the library has a copy and Town Hall has multiple copies.”

A similar process is followed with in-house upkeep of bylaws in Spencer, according to Town Administrator Adam Gaudette.

Online processing and better professional education about bylaw management have come a long way in preserving towns’ ruling documents. But human error could still occur.